Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Monday, February 06, 2006

Excess Caution

Another example of Excess Copyright does not come from the collectives’ side but rather from users. It is Excess Caution in copyright - most obviously evident in Canada's classrooms.

The educational community in Canada is perhaps the best (or worst) example of excess caution in copyright matters. Take for example the widely read publication entitled COPYRIGHT MATTERS! published by the Council of Ministers of Education, Canada, the Canadian School Boards Association, and the Canadian Teachers’ Federation. It is intended for K-12 teachers and their school boards.

It purports to set out basic copyright “rules”, many of which are arguably overly cautious and go beyond any caution that is required by law. The authors state that “This publication is a starting point in increasing awareness of your rights and obligations, as a teacher, in selecting and using copyrighted materials in your educational institution.”

The main trouble with the publication is that it is a litany of excess caution about what teachers and students can’t do (remember “Can’t Copy”) and is a constant and non-critical pointer to Access Copyright’s view of the world and referrals to several other content owner and collective friendly publications and websites. Not a word, for example, about CIPPIC’s excellent resource site or the fabulous EFF and other American resource sites on fair use, such as the one at Stanford.

Most seriously conspicuous by its absence - even though the publication bears a copyright notice of 2005 and is in its second edition - is the lack of any reference to or even apparent recognition of the landmark March 4, 2004 Supreme Court of Canada (“SCC”) decision in CCH v. Law Society of Upper Canada that considerably expanded the scope of fair dealing.

For example the CCH decision states at para. 56:

Both the amount of the dealing and importance of the work allegedly infringed should be considered in assessing fairness. If the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement. As the passage from Hubbard indicates, the quantity of the work taken will not be determinative of fairness, but it can help in the determination. It may be possible to deal fairly with a whole work. As Vaver points out, there might be no other way to criticize or review certain types of works such as photographs: see Vaver, supra, at p. 191. The amount taken may also be more or less fair depending on the purpose. For example, for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision. However, if a work of literature is copied for the purpose of criticism, it will not likely be fair to include a full copy of the work in the critique.

(Emphasis added)

Instead, COPYRIGHT MATTERS! advises that one can:

“make a single copy of works, such as articles or photographs, protected by copyright for private study, research, criticism, review, or news reporting under the sections of the Copyright Act that allow such uses of copyright material — referred to as "fair dealing"

(Emphasis added)

But the SCC is far from categorical about the “single copy” requirement. How can one publish a critique of a photograph if only a single copy can be made, as the Court points out above citing David Vaver? The Court does state that:

In assessing the character of a dealing, courts must examine how the works were dealt with. If multiple copies of works are being widely distributed, this will tend to be unfair. If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing. If the copy of the work is destroyed after it is used for its specific intended purpose, this may also favour a finding of fairness. It may be relevant to consider the custom or practice in a particular trade or industry to determine whether or not the character of the dealing is fair.

(emphasis added)

Multiple copies may indeed be illegal in some circumstances: “If multiple copies of works are being widely distributed, this will tend to be unfair”. But note the words “widely” & “tend”. This is hardly categorical. There is vast chasm between the encouraging openness of the SCC decision and the categorical “single copy” caveat and so-called “rule” in COPYRIGHT MATTERS!.

COPYRIGHT MATTERS! also fails to point out that many students can each make their own single copies for research purposes and that this would almost certainly be well within the CCH ruling.

Another example. COPYRIGHT MATTERS! also advises that one can:

copy or perform works whose author(s) died more than 50 years ago (but not translations or annotations of such works)

Does this mean that one can’t copy or perform a public domain translation of Dante or a public domain annotation of Shakespeare? Or that one can’t perform a public domain annotated edition of Mozart? The prohibition on translations and annotations is not qualified. Also, it is by no means clear and frankly unlikely that one needs any permission to “perform” a public domain work from an annotated edition in Canada, even if the annotations are still protected by copyright. Assuming that the original work has not been altered or adapted, it is the work that is being performed - not the annotations which usually serve to mainly to explain and comment on the work and which often have a very “thin”, if any, copyright element in themselves.

One of the most problematic and excessively cautious passages in COPYRIGHT MATTERS! concerns what teachers and students can’t copy from the internet. The pamphlet states:

Most material available on the Internet is protected by copyright. This includes text (e.g., postings to newsgroups, e-mail messages), images, photographs, music, video clips, and computer software. Under the Copyright Act, reproduction and unauthorized useof a protected work are currently infringements. Therefore, reproduction of any work or a substantial part of any work on the Internet would infringe copyright unless you have the permission of the owner.

(emphasis added)

The emphasized portion is a pretty categorical statement. Any teacher reading this passage is going to be afraid to use the internet in the way that virtually all of those who post freely available material expect their material to be used.

Does this passage mean that one needs the permission of Bell Globemedia Publishing Inc. to copy an article on the Globe and Mail website that is freely available, (i.e. not behind their pay wall) - and contains the ubiquitous “print” and “e-mail” buttons for those who can’t figure out how to make their browser do the same function? I would be extraordinarily surprised if the owners of the Globe and Mail (or a collective purportedly acting on its behalf) were to sue anyone anywhere for making a reproduction - or even several reproductions for teaching or research purposes - of an article not locked behind a pay wall. The Globe would probably be flabbergasted to receive a specific request for permission to print one of their freely available online articles. If the Globe went to court, it would have to deal with the ancient and important doctrine of “implied rights” in IP law, which confers on legitimate users the right to use IP protected products in the manner in which they are intended to be used without specific further permission.

I will have more to say about the great “publicly available material” debate in another blog. But in the meantime, I question whether some of the oversimplified and even simplistic pronouncements in COPYRIGHT MATTERS! are really serving the best interests of our teachers and students who presumably don’t want to wait for “permission of the owner” while the rest of the world and their counterparts in other countries zoom on by.

Excess Caution is just as counterproductive as Excess Copyright. It is easy to be too cautious. True, people don’t often get sued for being too cautious - at least not yet. But excess caution is getting in the way of teaching, learning and research in Canada.

The clearance culture of caution is seemingly oblivious to the doctrine of users’ rights - as proclaimed very explicitly by no less that the Supreme Court of Canada who said in CCH:

Under s. 29 of the Copyright Act, fair dealing for the purpose of research or private study does not infringe copyright. "Research" must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained, and is not limited to non-commercial or private contexts. Lawyers carrying on the business of law for profit are conducting research within the meaning of s. 29.

(Emphasis added)

If users in commercial situations such as the lawyers requesting copies from the library in CCH have users’ rights, then surely teachers and students in our publicly funded educational institutions deserve no less and should be advised accordingly.

It is crucial for Canadians to realize that the fair use doctrine of American copyright law - which is one of its best features - inherently involves pushing the envelope and fighting the good fight in court when necessary. The publicly funded educational institutions in Canada have the resources to do this. The issue is whether they have the will and whether they are making fully informed choices in all cases. Even on the lobbying front, where costs and risks are much less than in litigation, Canadian educational issues have consistently asked for very little and received, unsurprisingly, even less. That’s excessive caution. It’s one thing to have “respect for copyright agreements and the copyright laws that govern our country”. But that doesn’t require the voluntary imposition and exercise of excessive caution on the tax payer funded users in the educational system.

It's the job of educators to teach. Not to be copyright cops. There are already plenty of those to go around - and they do. With the advantages of Canada's extraordinarily collective-friendly legislation and governance, and even outright government subsidies.

Excess caution is not “how the west was won”. Excess caution won’t get Canada ahead on the road to competitiveness. Schools in the China, India, and even the USA are assuredly not excessively cautious about copyright matters. They don’t have an organization such as Access Copyright and their educational sectors push for the ability to teach and do research and do not function as proxies for copyright collectives - which are fewer and weaker in these far more ambitious countries.

There are risks in education. Both teachers and students can be struck by lightning or hit by a car while walking to school. But some risks are minimal, worth taking and must be taken. Nobody can guarantee that a school board won’t get sued one day. But Access Copyright is likely to lay low for a long while after CCH and is unlikely to risk another set back of such magnitude. Access Copyright (then called CanCopy) was heavily behind the CCH case. Going after the legal profession was one thing - and this backfired badly in a case that actually had a reasonable shot at success (except regarding copyright in the actual legal decisions themselves). The optics of going after school children would be something else. Probably even too much for Access Copyright.

For anyone familiar with American copyright law and collective overreach, just remember this. ASCAP and the Girl Guides. Enough said.

The main author of COPYRIGHT MATTERS! is Ms. Wanda Noel. She has had considerable experience in copyright matters. For example, she was counsel to the Parliamentary Committee that made a number of key collective-friendly changes to Bill C-32 in 1997. She was also the consultant to the Department of Canadian Heritage for whom she wrote the report and conducted the limited consultation that led to the ultimately discarded copyright term extension provisions in the 2003 “Lucy Maude Montgomery Act”. For many successive years, she was a consultant to the former Department of Communications (the predecessor the Department of Canadian Heritage), during which time her client was a successful champion of increased rights for creators and collectives. She was also counsel to the Parliamentary Committee that in 1985 produced the “Charter of Rights for Creators”, an influential document that advocated far reaching new pro-creator and pro-collective rights.